Maddock v. John Mulstein Co. — 159 N.Y.S. 675

Majority

p. 675

(174 App. Div. 876)

MADDOCK v. JOHN MULSTEIN CO.

(Supreme Court, Appellate Division, Second Department.

June 16, 1916.)

Headnote

Highways <§=3184(2)—Automobile Collision—Action—Evidence.

In an action for damages from automobile collision, evidence that plaintiff did not look before deflecting Ms course in a road, where he should have expected automobiles, or give warning signal to automobile following him, plaintiff’s own testimony being weakened by the fact that he betrayed his oath by knowingly Making a misstatement, did not warrant a verdict for Mm.

[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 472, 473%; Dec. Dig. <S=^184(2)J

<3s5>For other oases see same topic «6 KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Trial Term, Kings County.

Action by Lawrence Haddock against the John Mulstein Company. From a judgment of the County Court for plaintiff, and an order denying new trial, defendant appeals. Reversed, and new trial ordered.

Argued before THOMAS, CARR, STAPLETON, MILLS, and RICH, JJ.

William Godniclc, of New York City, for appellant.

William V. Burke, of Brooklyn, for respondent.

The proof is that the plaintiff did not look behind _ him, where the automobile was, and where it should have been expected. Had plaintiff looked over the road, he would have seen the car, and in prudence would have refrained from deflecting his course without warning the driver of the car. Had he given an ample signal of his intended turn, he could expect the following car to regard it. Upon cross-examination he stated that he did give such signal, but the belated statement was denied by the chauffeur and was not noticed by the onlookers; but the plaintiffs testimony, standing alone, is chiefly insufficient because it appears that he knowingly made a misstatement as to the moneys paid Dr. Love. Having betrayed his oath in that regard, he cannot be regarded as having observed it in a matter so vital as the manual warning.

The verdict is against the weight of the evidence, and the judgment and order of the County Court of Kings county should be reversed, and a new trial ordered, with costs to abide the event.